The Reference Riddle, 0520 SCBJ, SC Lawyer, May 2020, #28

• Author: By Samantha Albrecht
• Position: Vol. 31 Issue 6 Pg. 28

The Reference Riddle

No. Vol. 31 Issue 6 Pg. 28

South Carolina BAR Journal

May, 2020

By Samantha Albrecht

What do you say when someone calls for a reference on a former employee?

Employees come in all shapes and sizes. There are employees who light up the room and increase everyone else’s productively when they’re around, there are employees who are always willing to help out and who consistently go the extra mile. Then there are those on the other end of the spectrum—the employee who is always coming in late and leaving early, the ones who cannot seem to follow directions or meet a deadline, or who seems annoyed when they are asked to do their job. When an employer is called for a job reference for a former employee, especially a former employee who was not such a pleasure to employ, South Carolina law helps guide employers as to what they should and should not say.

Giving a job reference for an excellent employee is an easy task. Employers often take great pleasure in informing their business peers of the virtues their former star employees possess. The most difficult task of giving a reference for a positive employee is often simply the regret of no longer employing such a valuable team member.

Giving a job reference for a former employee who was not so excellent, however, can be difficult. Employers are placed with a moral dilemma on whether to lie to help the former employee get a new job or tell the truth by providing an honest reference complete with a list of all the reasons the employee was lazy or incompetent. Moreover, disclosing the full truth of an employer’s experience with a bad employee can often result in increased exposure to liability. An arguably honest negative reference can easily open the door to a defamation suit.

South Carolina law provides that a statement is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.^[1] Such statements are further defamatory per se when they accuse the individual of unfitness in their business or profession. This creates a presumption of malice on the part of the defendant and damages on the part of the Plaintiff.^[2] Defamation may occur by actions or conduct as well as by word. ^[3]

At the end of the day, if the negative reference given is true, the former employer should not be liable for defamation. However, truth is an affirmative defense, and the former employer holds the burden of proof to show that the reference was true.^[4] When the information provided is primarily opinion, truth can be difficult to prove. Further complications arise when references are given by telephone or in person, as it becomes difficult for employers to prove exactly what they did and did not communicate.

To avoid the risk of defamation litigation based on job references, South Carolina has created a statute which provides some protection for employers providing employment references.^[5]

This statute differentiates between written reference requests and less formal (often telephonic) reference requests. The statute gives immunity to employers who release “dates of employment, pay level, and wage history” in response to an informal reference request. Whereas, more information can be given in response to a written reference request including: • written employee evaluations that are signed by the employee and include any employee response to the evaluation;

• official personnel notices that formally record the reasons for separation from employment;

• whether the employee was voluntarily or involuntarily released from service and the reason for the separation; and,

• other information concerning the employee’s job performance.

The South Carolina reference statute generally provides civil liability for job reference that conform with the above. However, the reference statute does not apply where an employer “knowingly or recklessly releases or discloses false information.” ^[6]

Giving references that focus on providing information that is within the categories above protects those who provide references while allowing the individual who is providing the reference to provide honest information to the prospective employer. Stepping outside the boundaries of the protected reference categories is a common mistake in employment litigation, often made by well-intended business managers.

Statutes that provide limited protection to prior employers providing references are not unique to South Carolina. North Carolina provides that an employer who discloses information about a current or former employee’s job history or job performance to a prospective employer of the current or former employee upon request of the prospective employer or upon request of the current or former employee is immune from civil liability and is not liable in civil damages for the disclosure or any consequences of the disclosure.^[7] North Carolina specifies that the immunity does not apply if the information disclosed was false and the employer providing the information knew or should have known that the information was false.^[8]

Georgia has a similar statute, which provides that “an employer … or any person employed by an employer and designated as the employer’s representative who discloses factual information concerning an employee’s or former employee’s job performance, any act committed by such employee which would constitute a violation of the laws of this state if such act occurred in this state, or ability or lack of ability to carry out the duties of such job to a prospective employer of such employee or former employee upon request of the prospective employer or of the person seeking employment is presumed to be acting in good faith unless lack of good faith is shown by a preponderance of the evidence, unless the information was disclosed in violation of a nondisclosure agreement or the information disclosed was otherwise considered confidential according to applicable federal, state, or local statute, rule, or regulation.” ^[9]

At this time, there is not significant case law interpreting South Carolina’s statute. North Carolina law holds that information concerning the employee’s job performance includes the suitability of the employee for re-employment, the employee’s skills, abilities and traits as they may relate to suitability for future employment, and in the case of a former employee, the reason for the employee’s separation.^[10]

While both North Carolina and Georgia statutes’ reference coverage of both employers providing a reference and the actual employees of the former employer providing a reference, South Carolina’s statute has not at this time been interpreted to explicitly apply so broadly. Businesses and their legal counsel should educate those who provide employment references as to what information is, and is not protected by statute, and of the risks created by providing information beyond what the statute protects.

Samantha Albrecht is a senior associate at Cromer Babb Porter & Hicks in Columbia. Her practice focuses in the areas of plaintiff’s employment and education law.

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Notes:

[1] ^[1] McBride v.

School Dist. Of

Greenville County, 389 S.C. 546, 559-560, 698 S.E.2d 845, 851-852 (Ct.App. 2010).

[2] ^[2] Holtzscheiter

v. Thomson Newspapers,

Inc., 332 S.C. 502, 511, 506 S.E.2d 497, 502 (1998).

[3] ^[3] Tyler v.

Macks Stores of South

Carolina, Inc., 275 S.C. 456, 458, 272 S.E.3d 633, 634 (1980).

[4] ^[4] Beckham v.

Sun News, 289 S.C. 28, 344 S.E.2d 603, 604 (1986).

[5] ^[5] S.C. Code Ann. § 41-1-65 (Supp. 2010).

[6] ^[6] Id.

[7] ^[7] N.C. Gen. Stat. Ann. § 1-539.12.

[8] ^[8] Id.

[9] ^[9] Ga. Code Ann. § 34-1-4.

[10] ^[10] N.C. Gen. Stat. Ann. § 1-539.12.

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